Authority figures sometimes try to control speech, but I was not prepared for the demand letter I recently received in Mount Pleasant. Among other restrictions, the village attorney ordered me not to say his name.
“You will refrain from publicly referencing me in any comment, regardless of whether such comment is written or spoken,” he told me in March. If I ignored this decree, He Who Must Not Be Named threatened me with a defamation lawsuit.
Compliance would mean I no longer could function effectively as spokeswoman for A Better Mount Pleasant, a grassroots organization that seeks to hold public officials accountable. Entire topics would be off-limits. I could not even raise questions about the village attorney’s salary, which I help fund as a taxpayer.
Rather than submit, I took strength from former U.S. Secretary of State Madeleine Albright. “It took me quite a long time to develop a voice, and now that I have it, I am not going to be silent,” she once said.
I take this message to heart, so I will speak the two forbidden words: Christopher Smith.
Among the rights enshrined in the Constitution, freedom to criticize the government is among the most sacred. Citizens can face consequences if they defame a public official, but only if they show “actual malice.”
Smith misunderstands the term. He characterizes my history of activism as evidence of malice because I often criticize local officials. “Gallaher has a pattern of practice of consistently portraying Village employees and officials in a negative light,” he alleges in court documents.
The ancient Greeks executed Socrates for similar reasons. Yet the First Amendment works differently in modern America. Actual malice occurs only when citizens intentionally defame someone with reckless disregard for the truth.
I did not. I accused Smith of lying to the media about a rushed decision to extend Village Board terms from two years to three years. But I did not make the allegation until after careful review of public records provided by Smith himself, which I summarized accurately.
Smith said discussions on extending term lengths began in 2018, but the first public mention of the topic did not occur until April 2021. Smith maintains that earlier discussions had occurred off the record, which he says makes his statement to the media true. But he made this claim in the midst of public complaints — including from me — that the policy change had been dropped on the public without warning.
Private discussions would be irrelevant in this context because the public cannot respond to proposals they do not know exist. The suggestion that Mount Pleasant gave residents ample time to speak up was false. So I accused Smith of lying.
No defamation occurred with malice or otherwise, but Smith sued me anyway — partly because I continued to say his name. His lawsuit lacks merit, but public officials do not need a court victory to chill speech. Merely filing a lawsuit against an underfunded opponent constitutes a form of retaliation, regardless of the outcome, because citizens must pay to defend themselves.
Smith is not the first person to weaponize the judicial system in this manner. The practice is so common that policymakers have given it a name: strategic lawsuits against public participation (SLAPP). The message to anyone on the receiving end of a SLAPP is clear: If you try to stop us, if you embarrass us, if you criticize us — it will cost you. Your speech will never be free.
I am fortunate because the Institute for Justice, a public interest law firm, is representing me without charge. But other Wisconsinites are not so lucky.
State lawmakers can protect them from government bullies by passing anti-SLAPP legislation. The Uniform Law Commission provides a model bill called the Public Expression Protection Act. When adopted, the measure provides an avenue for quick, low-cost dismissal of frivolous defamation claims.
Overall, 32 states and Washington, D.C., have anti-SLAPP laws. But Wisconsin is not on the list. Public officials in the Badger State can continue to intimidate critics who would hold them accountable.
Wisconsin must join these other states, so citizens can say without fear: “Now that we have a voice, we are not going to be silent.”